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Proving Discrimination Claims in the Employment Tribunal
3rd August, 2021
In Royal Mail Group Ltd v Efobi (2021) the Supreme Court has clarified how Employment Tribunals should approach the burden of proof in discrimination claims, confirming that claimants must discharge an initial burden of proof.
Mr Efobi was employed by Royal Mail as a postman but had made a number of unsuccessful applications for transfers to roles within management and IT. Mr Efobi alleged that the rejections of his applications were acts of discrimination, including harassment.
The majority of Mr Efobi’s claims were dismissed by the Employment Tribunal. In a surprising decision, the Employment Appeal Tribunal allowed Mr Efobi’s appeal of the Tribunal’s judgment, indicating the Tribunal had incorrectly applied the burden of proof for discrimination claims.
The EAT rejected the convention that the initial burden was on claimants to show facts from which a Tribunal could infer discrimination had occurred (in the absence of any other explanation). Instead, the EAT suggested that the Tribunal should consider all relevant evidence without their being any specific obligation on claimants. The EAT pointed to a change in the wording between the Race Relations Act 1976 and the Equality Act 2010 as the basis of their decision.
Supreme Court’s Judgment
The matter ultimately came before the Supreme Court which, as widely expected, reversed the EAT’s decision. It confirmed that there is an initial burden of proof on claimants to show facts from which a Tribunal could conclude, in the absence of any other explanation, discrimination has occurred. If a claimant fails to do that, then their claim should be dismissed.
Once the initial burden of proof is satisfied by a claimant, it then shifts to the respondent (i.e. the employer), to show a non-discriminatory reason for the alleged less favourable treatment. If the respondent fails to do that, the claim will ordinarily succeed unless the discrimination can be justified.
The Supreme Court rejected the idea that the change in wording between the Race Relations Act and Equality Act removed of the initial burden of proof on claimants. While a Tribunal is entitled to take into account all relevant evidence at the initial stage, the claimant must still first show facts from which discrimination can be inferred.
Alex Sims comments:
“The Supreme Court’s decision will not surprise many but is nonetheless helpful clarification regarding the burden of proof in discrimination claims. It is not sufficient for claimants to make a mere assertion of discrimination and they will need to set out facts to support any allegations made.”
To discuss this case further or if you require advice regarding discrimination issues, please contact a member of the team here.
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